Noori v Police
[2023] NZHC 3799
•4 December 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-521
[2023] NZHC 3799
BETWEEN PERS PUSHO NOORI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 4 December 2023 Appearances:
H Shim for the Appellant M Nash for the Respondent
Judgment:
4 December 2023
ORAL JUDGMENT OF BECROFT J
[As to appeal against conviction and sentence]
Solicitors/Counsel:
J Yi, Barrister, Auckland Meredith Connell, Auckland
NOORI v NEW ZEALAND POLICE [2023] NZHC 3799 [4 December 2023]
The appeal
[1] On 17 September 2022, the appellant, Pers Pusho Noori (Mr Noori), assaulted his stepfather outside Upland Liquor Spot on Remuera Road, Auckland.1
[2] Mr Noori saw his stepfather inside the liquor store and followed him, verbally abusing him. The stepfather left the store. As he did, Mr Noori took a swing at him, but missed. The stepfather then went back to his vehicle. Mr Noori followed him there and confronted him a second time. He gained access to the vehicle, grabbed his stepfather by his clothing and tried to drag him out from the front passenger side. He punched his stepfather once with a closed fist to the left cheek and kicked him to the left upper thigh.2
[3] After pleading guilty to a charge of common assault,3 Mr Noori applied for a discharge without conviction under s 106 of the Sentencing Act 2002.
[4] District Court Judge CM Ryan heard the application. She noted that Mr Noori, to his credit, had admitted that he had previously received a discharge without conviction in 2020 for assaulting his mother with intent to injure her. Now, on similar grounds, he was advancing another application, this time for an assault on his stepfather.4
[5] The Judge assessed the gravity of the offending as low.5 She rejected purported travel consequences as speculative and a little uncertain at this stage of his life and also largely arising because of his behaviour (which he would inevitably have to explain), rather than because of any conviction.6 Further, purported employment consequences were speculative.7 This left only general consequences that apply to all those in these circumstances convicted of an offence such as this.8 She found that
1 New Zealand Police v Noori [2023] NZDC 21244 at [3].
2 At [4].
3 Crimes Act 1961, s 196.
4 Above n 1, at [2].
5 At [51].
6 At [62].
7 At [63].
8 At [52] and ]64].
those consequences were not out of all proportion to the gravity of the offending in this case. Therefore, she dismissed the application.9
Grounds of appeal
[6] Mr Noori now appeals. He makes three arguments set out in Mr Shin’s very helpful and comprehensive submissions:
(a)The Judge erred by placing excessive weight on the gravity of offending. This is particularly in the light of the challenges in life he has faced to date and was experiencing at the time. Also, the evidence set out in the fresh affidavit of his stepfather, the victim, who is entirely supportive of the Court according lenience by way of a discharge without conviction, must reduce the Court’s assessment of the offence’s gravity.
(b)The Judge erred by placing insufficient weight on the consequences of conviction. Those consequences relate to, first, citizenship, second, overseas travel and third, employment.
(c)The Judge erred in applying the balancing test.
[7] In Mr Shin’s view all the factors, when properly assessed, and particularly as to the consequence of conviction, mean that a conviction was out of all proportion to the low gravity of the offending.
Police opposition
[8] The respondent opposes the appeal, submitting that the Judge was correct in the entirety of her decision on the application.
[9] However, no issue is taken with the application for leave to adduce the victim’s affidavit in support.
9 At [64].
[10] I have read the affidavit from the victim. It is not fresh in the sense it could have been obtained at the time. But the victim was overseas which would have made it more difficult to obtain. It is relevant and it is cogent. I grant the application for leave to adduce it in support of Mr Noori’s appeal.
Approach on appeal
[11] It is agreed between counsel that the proper approach on this appeal as set out in the submissions for the Police.
[12] An appeal against a refusal to grant a discharge without conviction is a composite appeal against both conviction and sentence.10 The appeal is by way of rehearing whereby the appellate court makes its own assessment of whether the criteria for discharge without conviction are met.11
[13] The appellant bears the onus of satisfying the appeal court that it should differ from the decision under appeal.12 Unless satisfied that a miscarriage of justice has occurred, the Court must dismiss Mr Noori’s appeal.13 In the context of a discharge without conviction, a miscarriage of justice means a “material error” or that the Judge “erred in applying the principles” for discharging an offender without conviction.14
Discharge without conviction – s 106
[14] As to the appropriate process in assessing an application for a discharge without conviction, it is agreed that the approach set out the Police submissions applies.
2.3Discharges without conviction are made under s 106 of the Sentencing Act 2002. Section 107 in turn provides that the discretion should only be exercised if “the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending”.
10 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [6]–[16].
11 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].
12 Austin Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4].
13 Criminal Procedure Act 2011, s 232(2)–(3).
14 Above n 10, at [12].
2.4The disproportionality assessment is made according to the three-step approach set out by the Court of Appeal in Z (CA447/2012) v R:15
(a)identify the gravity of the offence, including the aggravating and mitigating factors of the offending and the offender;
(b)identify the direct and indirect consequences for the offender; and
(c)determine whether those consequences are out of all proportion to the gravity of the offending.
2.5In terms of determining whether something is a “consequence”, it is not necessary for the Court to be satisfied that the outcome is inevitable. All that is required is a “real and appreciable risk” of it occurring. If there is such a risk, the nature and seriousness of the consequence, as well as the degree of likelihood of it occurring, will be material to the Court’s assessment of whether the consequences are out of all proportion to the gravity of the offence. As the Court said in Iosefa v New Zealand Police, “In other words, the higher the likelihood and the more serious the consequences the more likely it is that the statutory test can be satisfied”.16
[15] As will be seen, this appeal focusses on each of the three steps required to be followed in assessing whether a discharge without conviction should be granted. I deal with each of those in turn.
[16] For completeness, I add that there is no inviolable principle that a person cannot receive a second discharge without conviction, or a third for that matter. Each application must be judged in the context of its own circumstances. That said, the fact that a previous discharge has been granted, especially for similar offending, will be relevant in assessing the appropriateness of a discharge and will sometimes weigh heavily against it being granted.
Did the Judge err by placing excessive weight on the gravity of the offending?
[17] The first thing to say is that Judge Ryan concluded at paragraph [51] that the gravity of the offending must be regarded as “low”.
15 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27]–[28].
16 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34].
[18] She reached that conclusion by first identifying what actually happened. She correctly noted that Mr Noori, after verbally abusing his stepfather and swinging a punch at him that missed, could have ended the situation then. But he did not. He chose to follow him. She noted that although the stepfather wisely got out of the liquor store and got into his car, Mr Noori followed him and confronted him again. He grabbed at his shirt, tried to pull him out of the car, punched him in the side of the head and kicked him. She noted that there were a number of offences rolled into one perpetuated against this 56-year-old man. He was trying to get away and not to engage in conversation. Earlier on in her remarks, she had discussed, in a colourful way, the inherent dangers of attacks to a person’s head. Perhaps it might be said, in the circumstances where there was no expert evidence, the learned Judge slightly exceeded what might have been appropriate.
[19] All that said, her analysis cannot be faulted. On the basis of the facts she had recited, Judge Ryan correctly considered the gravity to be moderate.
[20] But then she looked, as she had to do, at the circumstances of the offender. She recognised that Mr Noori pleaded guilty; that he had completed a “Stopping Violence” course; that he had put money into his stepfather’s account to assist in terms of cashflow. He was independent with his own financial affairs under control. He had been promoted in a company which appeared to speak highly of him and where he wanted to make it his future. In fact, it was observed this was not the first non-violence course he had undertaken. To his credit, he has undertaken a further non-violence course.
[21] In my view, it was very fair for Judge Ryan to reduce her the initial assessment of the gravity of offences from moderate to low. When I pushed Mr Shin as to how this could be said to be in error, he emphasised that it was a matter of semantics and terminology. He would have preferred an assessment that described the gravity as being “very low” or indeed “exceptionally low” or something less serious than “low”.
[22] Frankly, I think that is somewhat akin to “dancing on the head of a pin”. I mean no disrespect to Mr Shin but, traditionally, Judges would usually view the offending as falling into one of three general categories: low, moderate or serious.
[23] In the round, it seems to me that Judge Ryan’s assessment was perfectly appropriate. There has been no material error.
[24] I certainly take into account the new evidence from the victim. He is clearly supportive of the application. He explains that he had a “sore cheek and leg but nothing major and nothing that required medical treatment”. However, with his friend at the time, he reported the matter by attending at the Police station. That may indicate that it was not viewed by him as being trivial.
[25] However, since that time, he notes that Mr Noori has reached out to him. He has apologised to him. Mr Noori has explained that he saw his mother as siding with his stepfather which led to Mr Noori having to leave the family home and being homeless for a little while. He said that caused him real difficulty.
[26] The victim also explains that there have been no arguments between them since and that they are now on very good terms. He also notes that Mr Noori is a good person at heart who has gone through a lot of difficulties, but he has picked himself up very well and is doing well for himself. He says he fully supports his appeal for a second chance. Technically that might be read as a third chance.
[27] At any rate, the affidavit evidence certainly adds to the submission that the offending for a Crimes Act common assault carrying a one-year maximum sentence is towards the bottom or low end of the scale – however that best be adjectively described. But there is no error by the Judge at this first step of the process.
[28] I add that rather than a discount for previous good character, as argued for at [19(e)] of the appellant’s submissions, it would have been open to the Judge to assess Mr Noori’s culpability as being higher than she did on the basis of his previous discharge without conviction. This is permitted where a previous discharge without conviction has been given in relation to similar offending.17 This is the case here – Mr Noori has assaulted his stepfather, having previously received a discharge without conviction for assaulting his mother with intent to injure her. I say no more than that.
17 Swami v New Zealand Police [2012] NZHC 2725 at [25], citing Morgan v Police HC Auckland CRI-2009-404-212, 8 October 2009; and citing Police v McCabe [1985] 1 NZLR 361 (HC).
Did the Judge err by placing insufficient weight on the consequences of conviction?
[29] Three particular consequences were adverted to by Mr Shin. I deal with them in order.
Citizenship consequences
[30] First, that Mr Noori’s application for New Zealand citizenship would be more difficult. In fact, as Ms Nash fairly observed, in Mr Noori’s affidavit what he actually says about citizenship at paragraphs [34] and [35] is as follows:
[34]I am currently living in New Zealand as a permanent resident. I want to be able to apply for citizenship in New Zealand some day because I really like living in New Zealand.
[35]I have heard that if I get a conviction, it will make it harder in becoming a New Zealand citizen.
[31] Mr Noori has not yet applied for New Zealand citizenship. This is something that apparently will take place in the future. It is quite correct that under s 9A(1)(c) of the Citizenship Act 1977, because of this conviction, he would be required to wait out three years before he can apply. That is presumably to demonstrate offending-free behaviour and an otherwise responsible lifestyle in New Zealand. At that stage he will have to pass the “good character test” set out in s 8(2)(c) of the Act. He will not then be “barred from citizenship”, but a conviction such as this will raise what might be properly called a “real and appreciable” difficulty.
[32] I have no evidence before me as to what extent that will create such a difficulty. It will certainly be a hurdle for Mr Noori to jump. Mind you, I would think he would have to explain his earlier behaviour where he was discharged without conviction in respect of a charge of assault with intent to injure of his mother. So there will be, as Ms Nash puts it, a marginal increase in the difficulty if a conviction is imposed here because he would have to disclose this second set of offending behaviour in any case.
[33] Taken by itself, it seems to me the citizenship risk is an appreciable hurdle and Mr Noori will, if he wishes to apply to become a New Zealand citizen, have to explain this behaviour and that against his mother. But they can hardly be said to be insuperable hurdles.
Travel consequences
[34] Second, Mr Noori is concerned that a conviction will stop him travelling overseas. He particularly noted, through counsel, that he wished to travel to Australia, the USA and Japan. Certainly, none of those countries bar entry from someone convicted of an offence such as this. But the offending will certainly need explanation and it will make it harder to gain a visa.
[35] I have no further information before me than that. This is not a situation as set out in the case of D v R,18 where the appellant was required for employment purposes to travel legally and at short notice to Australia. Her position was supported by way of letter from her employer. There is no such information or a similar position here. Mr Noori is really talking about his desire for further travel, and it may be as part of his employment. But no more than “may be” that he might be required to do. There is no further information than that.
[36] These matters were all carefully addressed by Judge Ryan. She made clear at paragraph [59] of her decision that while entry into the countries previously described will be harder, how much harder it will be for Mr Noori is a matter, as the Judge put it, “of speculation”. It will be for the Australian authorities, she noted, to consider how the conviction reflects on Mr Noori’s good character. She then went on to provide a more detailed analysis:
[60] Next, the evaluation must be conducted with reference to all relevant considerations. That clearly means, as the High Court held in Wanoa that any adverse consequences will arise out of the nature of the offending, rather than the conviction. Immigration authorities’ consideration of all relevant circumstances suggests that any adverse consequences must follow from the nature of the offending, rather than the conviction itself. That means that what is key to the Australian authorities, in addition to US authorities and from the limited information provided to me about Japan, the Japanese authorities, is the nature of the offending.
18 D v R [2019] NZHC 2857.
[61] It is therefore not the conviction, but what Mr Noori has actually done that is relevant to those authorities. That is the same in New Zealand in relation to visas and citizenship as held in Sok v R and other cases.19 Deportation and the rejection of an application for citizenship is a consequence of the offending.20 All the authorities will have to consider the circumstances and decide accordingly.
[62] Mr Noori will have to, whatever I do, disclose to the US and Australian authorities, at least, what he has done to his mother as well as what he has done to his stepfather. That is so whether I convict him today or not. Furthermore, given the vagaries about Mr Noori’s travel plans, I consider that the consequences are vague and uncertain, not real and appreciable.
[37] In my view it cannot be said that Judge Ryan was in error in this approach. It seems to be consistent with the authorities. Again, as Ms Nash pointed out, in any case Mr Noori will have to disclose all his behaviour. There will be an increased difficulty, but only marginally so if a conviction is imposed, over and above what he would have to explain in any case.
Employment
[38] As to employment, clearly Mr Noori is concerned that a conviction may blight future employment prospects. I do not know whether he has disclosed this offending to his employer. Shortly before the sentencing, I am told he was promoted. He continues to be employed. There is no suggestion that he will be “released”. He is apparently spoken well of and is doing well. The Judge emphasised that there is no clear information as to any adverse consequences in the way of a bar to further promotion or, more importantly, the ability to stay in employment. One would have expected an appropriate letter from his employer or better still an affidavit if this was a genuine risk.
General
[39] I have to say, too, that there is something in the view expressed by Judge Ryan that if the sorts of consequences that were set out here were accepted as justifying a discharge, it would mean that in very many similar cases where citizenship hurdles, increased travel difficulties, and difficulties with employment prospects applied, it
19 See Sok v R [2021] NZCA 252, (2021) 29 CRNZ 962; Gasu v Police [2021] NZHC 2948; and
Cabuyao v R [2021] NZHC 3395.
20 Bolea v R [2023] NZCA 39 at [46].
would mean that discharges without conviction would have to be regularly granted in terms of consistency.
[40] I do not mean to overstate that conclusion. Of course, every case depends on its own circumstances. But in my view there needs to be more than has been put before the Court here in the way of specific intentions for travel, particularly work-related, a pressing need for citizenship or some clear employment difficulties such as being precluded from employment or promotion because of this type of offending. That has not been provided in this case and it seems is not available.
[41] So, all in all, I would regard the consequences of conviction here to be just as Judge Ryan described them to be – as being the sorts of consequences that would apply to anybody in the defendant’s position who is convicted of this type of offending.
Did the Judge err in applying the “balancing test”?
[42] The test requires that the consequences of conviction must be “out of all proportion” to the gravity of the offending. Those words “out of all proportion” must be given some meaning. They mean more than “out of proportion”. They mean more than “disproportionate”.
[43] Here, the gravity of the offending may be considered as low. But it is not at the lowest end of the scale. And it must be taken into account that there has been a previous discharge without conviction. I place no strong reliance on that. Each case must be considered in its own circumstantial context. But it cannot be ignored.
[44] I also accept that a 21-year-old at the time of the offending, now 23 years old, can act impulsively without thought of consequences. This could well be the case here. But I temper that with the reminder that Mr Noori had undergone an anger management course.
[45] So, there can be no fault, as I have concluded no material error in the Judge’s assessment of the offending as being low.
[46]Neither is there fault in her assessment of the consequences of the offending.
[47] In my view, applying the appropriate balancing test and giving it meaning the “real and appreciable” difficulties in gaining citizenship, overseas travel, and perhaps employment, are not out of all proportion to the gravity of the offending. The most that can be said is they might be slightly out of proportion. But no more than that.
Conclusion
[48] When the test is properly applied, there is no material error in any aspect of the test that was imposed by Judge Ryan. Hers was a very full and very comprehensive assessment. There may be some quibble that could be taken with words here and there, and some of the phraseology but, overall, her approach is clear. The three-step process has been properly set out. It has been analysed and applied in detail. In the end the conclusion speaks of no miscarriage of justice. It is a decision that is without material error. There is no miscarriage of justice.
[49]The decision must stand. The appeal is dismissed.
Becroft J
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